from the a-good-question dept

While we're big fans of Creative Commons in general, for many years, we've raised questions about some of the licenses/clauses -- with the NonCommercial one being of particular concern. Almost four years ago, we worried about the very blurry line between what was commercial and what was non-commercial, and how trying to separate them out in a license could lead to serious problems. Two years ago, Nina Paley also argued about significant problems with the NonCommercial licenses, and how they actually hurt Creative Commons itself in the long run by creating branding confusion. In particular, many people think that all CC licenses bar commercial use, even though that's not the case at all.

The two proprietary clauses remaining in the CC license set are NonCommercial (NC) and NoDerivatives (ND), and it is time Creative Commons stopped supporting them, too. Neither of them provide better protection against misappropriation than free culture licenses. The ND clause survives on the idea that rightsholders would not otherwise be able protect their reputation or preserve the integrity of their work, but all these fears about allowing derivatives are either permitted by fair use anyway or already protected by free licenses. The NC clause is vague and survives entirely on two even more misinformed ideas. First is rightsholders’ fear of giving up their copy monopolies on commercial use, but what would be considered commercial use is necessarily ambiguous. Is distributing the file on a website which profits from ads a commercial use? Where is the line drawn between commercial and non-commercial use? In the end, it really isn’t. It does not increase the potential profit from work and it does not provide any better protection than than Copyleft does (using the ShareAlike clause on its own, which is a free culture license).

The second idea is the misconception that NC is anti-property or anti-privatization. This comes from the name NonCommercial which implies a Good Thing (non-profit), but it’s function is counter-intuitive and completely antithetical to free culture (it retains a commercial monopoly on the work). That is what it comes down to. The NC clause is actually the closest to traditional “all rights reserved” copyright because it treats creative and intellectual expressions as private property. Maintaining commercial monopolies on cultural works only enables middlemen to continue enforcing outdated business models and the restrictions they depend on. We can only evolve beyond that if we abandon commercial monopolies, eliminating the possibility of middlemen amassing control over vast pools of our culture.

Most importantly, though, is that both clauses do not actually contribute to a shared commons. They oppose it. The fact that the ND clause prevents cultural participants from building upon works should be a clear reason to eliminate it from the Creative Commons license set. The ND clause is already the least popular, and discouraging remixing is obviously contrary to a free culture. The NonCommercial clause, on the other hand, is even more problematic because it is not so obvious in its proprietary nature. While it has always been a popular clause, it’s use has been in slow and steady decline.

Of course, as they note, the NonCommercial clause is still used pretty frequently -- though often without much thought given to why. The site suggests that perhaps those clauses could actually be rebranded or moved out of Creative Commons directly, to keep CC more focused on true open culture efforts.

It's an interesting proposal all around, and we're already seeing a fair bit of buzz about it. It will be worth watching to see if it really gets any traction.

Reader Comments

There is no such thing as non-commercial, only varying degrees of commercial success. Everyone gets paid one way or another. As soon as you try to put up a "non-commercial" wall, you distort the money field and it finds ways over, under, or around the walls, warping everything else with it. See amateur athletics at Olympics and NCAA, for just one example.

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There is no such thing as non-commercial, only varying degrees of commercial success.

I don't agree with this at all.

Over the years, I have run numerous very popular internet services including MUDs (text-based MMORPGs, for the youngsters out there), software repositories, bulletin board systems, blogs, and much more. Most of these services have operated for over a decade.

Not one of them has been commercial in any sense, ever. No ads, no subscription charges, no nothing.

It would be very misleading to describe them as "commercial failures," as they weren't intended to be commercial ever. To make them so would have ruined them.

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An much of that work may have been to support a commercial product, or in hopes of building the reputation of the creator so they could pursue future employment. I have my current job because of years of volunteer work that I did.

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True, but to count that as qualifying the efforts as "commercial" broadens the definition of "commercial" so far as to make it meaningless. Isn't a more meaningful definition of the word something closer to how the IRS defines it: an activity that is intended to generate revenue?

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So let's say I can get a better salary/job if I learn how to use certain software package. Then I can't use NC licensed of the software to educate myself since my entire purpouse is to generate a revenue stream. Then if I use it just for fun that's fine --even if I get the same revenue stream, but this time not on purpouse.

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At least one possible reason to release under a non-commercial CC license is for amateur artists who don't think they'll make any money off of something and just want to show off their skill, but they want to theoretically prevent some major company from coming along and putting their design on a t-shirt without paying them if someone actually thinks the work is worth something. Maybe they don't have the time or the know-how to monetize the design by putting it on t-shirts, but they don't want to miss out on that money if the design is worth something to others.

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Gotta agree there. For all the good he's done, I think the person who's caused the most problems for Open Source adoption has been Richard Stallman, not anyone at Microsoft, Apple or any other proprietary software company.

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I really hate to sound like the copyright maximalist trolls here, but this is one area where it may only work for some people.

If Harper Lee put out To Kill a Mockingbird with a non-commerical license, she wouldn't be doing herself a favor since she only wrote the one book. There was no promotion of other works possible since she didn't produce much else other than a few short pieces in magazines.

What if an amateur artist produces one single design that does really well (like for instance, the Nike swoosh design [for which Carolyn Davidson was originally paid $35 and only later gifted with Nike stock and a diamond ring as thanks]) and never does anything of significant commercial value again?

I'm specifically saying amateur because it might not be the artist's intention or in their ability to produce enough of a body of work to sell more designs.

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What, you're saying that laws that were meant to foster the creation of new works should give extra attention to those do don't create new works? The one-hit wonders?

Of course, all of your cases are entirely taken in hindsight. Until the original creator dies, there is no way to know for certain that will be the only work created. Or do we need to wait for 70 years, just be to sure that a reanimated corpse doesn't get hit with a creative streak?

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Ed C. said: "Or do we need to wait for 70 years, just be to sure that a reanimated corpse doesn't get hit with a creative streak?"
I wrote a story about that based during the time of the copyright term extension of the 1970s. Good job facts can't be copyrighted or my ass would be in court, LOL!

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Ed C. said: "Or do we need to wait for 70 years, just be to sure that a reanimated corpse doesn't get hit with a creative streak?"
I wrote a story about that based during the time of the copyright term extension of the 1970s. Good job facts can't be copyrighted or my ass would be in court, LOL!

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"What if an amateur artist produces one single design that does really well"

What if he produces none, which is more realistic? What are his work's chances of becoming the next "To kill a mockingbird"?
Doing "really well" is unlikely. Most amateurs' works are not going to do well at all no matter how they are licensed, but a free license gives more opportunities.

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Backwards and forwards economic structures

This is a quite common argument, but it is interesting, and the problem with it is perhaps illuminating.

A creator makes something for nothing, then a big corporation uses it and makes lots of money. Surely some of the profit should go back to the creator, right? The well-known example is the Nike logo: done for a few tens of dollars -- although that does not quite fit perfectly because there was some later payment. It seems persuasive: there is lots of money, and the creator obviously contributed.

But the basic structure of this is backwards. It is trying to work retrospectively: when profits *later* arrive, divide them up and send them back to whomever is deemed an *earlier* creator of them. That does not really make sense.

Instead, the right way around, we should be ensuring *up-front* that people can create things. Rather than using information to allocate money backwards, we should be using information to allocate money for intended/expected future work and results.

Why give people money anyway? So they can do useful things with it. Giving people money only for having done something *previously* serves no sensible purpose.

(Now, how to devise and implement more 'forward' economic structures is something to think creatively about . . .)

Re: reminded me of this

I used to be a big fan of the NC, until I realized that I was only using it to prevent other people from making money from something I did. And then I realized that that made me just as bad as all the other culture cops out there, and since I didn't care if people copied my stuff, why should I care if they profit off of it? Ultimately, what I wanted was the credit for the parent work, and as long as there's a CC-BY, I'm still good.

I still do SA, though, as a matter of principal.

That being said, I think that NC and ND are good things to have to promote openness in otherwise gated content. I think if CC did away with these clauses, they would get fewer new adopters. The better solution is to keep these clauses around to encourage growth, but to educate people (as I was educated) that while it might be comforting to have the NC/ND clauses, they should only be used as a gateway to better access to content.

Also, if the CC got rid of NC, Cory Doctorow's new books wouldn't be released under CC-4.0 licenses due to an agreement he has with his publisher.

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Yes.
I have hated NC and ND for as long as I've known about Creative Commons, for exactly the reasons espoused by Nina and the Students. They don't help, and they confuse people: how many times have you heard someone refer to a "creative commons license" without specifying which clauses it includes?

My favourite remains the CC0 Public Domain Dedication, because even BY can be cumbersome or impractical and I dislike viral licenses. But my ideal world would not include licenses for such things at all, so take that as you will.

I'm a huge fan of CC but this is myopic

Guys, the goal of CC is not just to create a large commons of works, but, in my eyes, also, an attempt to standardize licensing terms across the internet.

By dropping the no derivatives and no commercial use clauses, you are drawing a line in the sand and telegraphing to the vast majority of commercial enterprises that you want no truck with them. That seems childish. It is basically saying that CC is only for the converted -- it turns CC into an echo chamber.

Do I think that NC and ND clauses are legally dubious or ambiguous? Sure. Do I generally disagree with their motives? Yes. However, having worked as in-house counsel in a software startup for a few years now, let me assure you, sometimes, our hands are just tied. And, in the worlds in which I fly, proprietary software is still king.

So, basically, if you want to tell all the large commercial firms on the planet that they have no reason to even bother with CC, this is the way to go. However, if you want to give them a system, called CC, that can save them money, by referring to shorthand license terms, instead of having to draft it themselves over and over, and thereby gradually introducing them to the idea of free culture and winning converts, keep these clauses in.

Re: I'm a huge fan of CC but this is myopic

Agreed. I think they could try to narrow down what is considered commercial use instead of eliminating it. The non-derivative can go because I don't see how you can prevent the fans from working on your creations and it's just silly. But the non-commercial should stay.

Why NC/ND are unneeded (my own crosspost from the Reddit topic)

NC and ND are unneeded if proper education is taken to promote proper copyleft. Here are the main reasons to remove them, from my perspective:

- Non-commercial restrictions come from the confussion between copyrighted usage and commercial usage. There are plenty of non-copyrighted but commercial usages: playing a song in an event with entry fee, placing it in an ad-driven blog, etcetera. Share-alike licenses deal with the copyrighted usages, and the artist is free to cash with their work even if others do.
- Non-derivative restrictions come from the fear of having a person's opinion distorted. Attribution and moral rights deal with that; derivatives must be clearly labeled as such.

There is Value there

I see great utility in the noderivatives option as many creators may want to limit modifications to their work while still allowing broad use of it. While I would prefer these creators use a more open license, it is fundamentally their choice and I respect their decision (for a limited time) to restrict derivatives.

ND or a variant is useful for opinion pieces, where a derivative work would seem to show the original author saying something different. The variant could state that the original work is distriburted as it under the original autjhors name, but that any altered works are distributed under the name of the person who altered it. There is a huge difference between 'I agree with' and 'I disagree with' etc. Therefore ans Author must be abble to state that they only wish their name to be associated with the original work.

Collecting Society based on NC in Europe

Although i really understand the arguments pro and contra NC/ND I would like to make you aware of the fact that there are efforts made in Europe, especially in Germany, to build up a european collecting society which will collect revenues from commercial uses of CC-NC-Lizences - the definitions of clear commerical is of course necessary for it. It's name is Culutral Commons Collecting Society (C3S): http://www.c-3-s.eu/ They are planing to start their work next year.
They will present their issue on the SXSW 2013.

Couple of objections...

One objection I have to dropping NC is the unfortunate case we already see in the music industry and with YouTube...

Where an original indie artist will create a work - it gets picked up free by a corporate, who release a movie or song -- then 3 months later the original artist is receiving DMCA takedowns and cease & desist orders for using the work which they actually own!

Furthermore there is the argument that by offering ND-NC you are keeping the possibility of widespread adoption of Creative Commons vs (C)opyright. If more people default to specifying (CC) rather than a (C), Creative Commons actually wins more legitimacy and presents creators with a choice when specifying copyright rather than going with the typical restriction (many creators are still not even aware of CC).

What they seem to advocating is the equivalent of BSD/Apache license for creative works - maybe they should be looking to the GPL and be advocating that the work can be put to commercial use, but that any derivative should release the derivative 'elements' back to the community for remixing.

Re: Couple of objections...

Where an original indie artist will create a work - it gets picked up free by a corporate, who release a movie or song -- then 3 months later the original artist is receiving DMCA takedowns and cease & desist orders for using the work which they actually own!

If the artist chooses Share-Alike, then its a fault of the corporation, not of the artist. Now, if we talk about CC-BY-only artwork, the situation grows grimmer.

Furthermore there is the argument that by offering ND-NC you are keeping the possibility of widespread adoption of Creative Commons vs (C)opyright. If more people default to specifying (CC) rather than a (C), Creative Commons actually wins more legitimacy and presents creators with a choice when specifying copyright rather than going with the typical restriction (many creators are still not even aware of CC).

I've heard about this argument. Promoting half-freed licenses is a short-lived solution. Educating artists about the benefits of permitting commercial use and derivative works, on the other side, is better in the long run for the free culture community and the world as a whole.

What they seem to advocating is the equivalent of BSD/Apache license for creative works - maybe they should be looking to the GPL and be advocating that the work can be put to commercial use, but that any derivative should release the derivative 'elements' back to the community for remixing.

Exactly! Copyleft licenses are better than permissive licenses in that regard, because they require all derivatives to be free-as-in-freedom as well.

Yes! Yes! A Thousand Times Yes!

I disagree on this one

I completely disagree with this idea. I personally release my works under a CC-ND license, and if I didn't have that option, I wouldn't use CC at all.

The rationale is simple: I don't care if people share my music with each other (in fact, I welcome it). But if someone is making money directly from my music, then I deserve some of that money.

And I am not alone: 67% of the artists who use CC licenses use some form of -NC license. If you include -ND licenses, that number is 71%. Clearly, the vast majority of CC license users want these licenses to exist.

The bigger (and IMO better) question is what should constitute "commercial use." If you host my music on a blog with ads, is that a commercial use of my music? If you're a file hosting site that offers paid subscriptions, and someone uploads my music to that site, is that a commercial use of my music? In my opinion, the answer to both questions should be an unequivocal "no."

The plain fact is that the CC license really doesn't answer these sorts of questions. (It does, at least, explicitly exempt file sharing from "commercial use.")

So, I actually defined "commercial use" myself, in a FAQ on my website. By my definition, it is a "commercial use" if:
1. You are charging money for access to, or copies of, the content; or
2. You are a legally registered business entity (LLC, corporation, partnership, sole proprietor, etc).

"You" means the entity that actually offers the content (legally speaking, the distributor or transmitter), and not third parties.

I'm actually unsure if I can still call this "CC-NC," but when I asked this in the CC forums, I got no answer. So, I still do.

Re: Re: I disagree on this one

ND doesn’t achieve that.

It does, in the sense that if someone wants to use my music in a commercial capacity, they have to license it (or otherwise get my permission).

Without -NC, my work could be exploited for profit without my approval. Also, you couldn't join PRO's like BMI or ASCAP - nor, for that matter, Tunecore. Jamendo Pro would pretty much be out of business.

I am mostly in sympathy with the objections to NC, but I think maybe the world isn't ready to let it go; among well-meaning artists there's still a visceral distrust of opening your work up for commercial exploitation by others, so the option needs to be available so as not to drive people into the arms of full-on copyright default.

I've always had a principled objection to ND (in my view it preserves the *most* destructive, boot-on-the-neck-of-free-speech aspect of copyright), and I would personally like to see it go. The lesser-evil argument might also apply there, but less so, if, as stated, it's the least popular license.

Nina Paley's argument about branding issues is strong, too. Since CC is unfortunately so associated with NC, maybe a stronger push give the "Free Culture Approved" licenses (already marked as such on the site) their brand.

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NC is the point at which I can feel my gut kicking in, while I want any one to be able to share and freely adapt and use work I create I feel my self having a simple emotional reaction to the idea that some one can be making money in part by using my work with out me getting something out of it as well. Now don't get me wrong I'd want any of my work to go public domain with in a reasonable time but before then if my work is doing work I'd like some money.

I'm battling with my self about logic of this and I've still not fully come to a conclusion. That said however the only way I've been able to get the rest of my band to agree to use CC at all is with the NC item. They are vastly more conservative and honestly much less interested and informed about this stuff than me and while they understand the benefits of giving out our stuff for free they do not want to see other people use our stuff to make money.

CC still needs the option and trying to force the change in the market by removing it is only really going to marginalise CC use to those who are already converted. In the case of my band they are people who likely wouldn't even think about this stuff but who are learning about it and actively using parts of it because of the NC.

NC is a safety net for people who are being caught up in a change they didn't see coming and don't yet fully understand and I think CC will weaken it's self by losing it at this point.

Right to License

Does a copyright owner have the right to "license" a work in the first place? Licensing was abolished hundreds of years ago.

The Licensing of the Press Act 1662, an Act of the Parliament of England:Printing presses were not to be set up without notice to the Stationers' Company. A king's messenger had power by warrant of the king or a secretary of state to enter and search for unlicensed presses and printing. Severe penalties by fine and imprisonment were denounced against offenders.

(a)...the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized bysuch owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.

Re: Re: License vs. Ownership

Compare to Vernor v. Autodesk. According to this standard, is a CC license really a license?

Vernor:We hold today that a software user is a licensee rather than an owner of a copy where the copyright owner

(1) specifies that the user is granted a license; (2) significantly restricts the user's ability to transfer the software; and (3) imposes notable use restrictions.

Applying our holding to Autodesk's SLA, we conclude that CTA was a licensee rather than an owner of copies of Release 14 and thus was not entitled to invoke the first sale doctrine or the essential step defense.

"Use" vs. Reproduction and Distribution

Does a copyright owner have the exclusive right to "use" a work in the first place?

Copyright Law:§ 106 · Exclusive rights in copyrighted works...(1) to "reproduce"...(2) to prepare derivative works... (3) to "distribute"... to the public by sale or other transfer of ownership, or by rental, lease, or lending...

Commercial : use vs. reproduction and distribution

Does a copyright owner have the exclusive right to "use" a work for "commercial purposes?" Is “use” different from reproduction and distribution?”

Creative Commons NonCommerical Clause:NonCommercial — You may not "use" the material for commercial purposes.

Copyright law:§ 108 . Limitations on exclusive rights...(a) ...it is not an infringement... for a library or archives... to “reproduce”... or to “distribute”... if— (1) the reproduction or distribution is made without any purpose of direct or indirect commercial advantage...

Copyright Website:a. Senate Report: Discussion of Libraries and Archives in Profit-Making Institutions:The limitation of section 108 to “reproduction and distribution” by libraries and archives “without any purpose of direct or indirect commercial advantage” is intended to preclude a library or archives in a profit-making organization from providing photocopies of copyrighted materials to employees engaged in furtherance of the organization’s commercial enterprise, unless such copying qualifies as a fair use, or the organization has obtained the necessary copyright licenses. A commercial organization should purchase the number of copies of a work that it requires, or obtain the consent of the copyright owner to the making of the photocopies.

Derivative works: case law on subject of history

HOEHLING v. UNIVERSAL CITY STUDIOS, INC., (2nd Circuit, 1980.)

...the protection afforded the copyright holder has never extended to history, be it documented fact or explanatory hypothesis. The rationale for this doctrine is that the cause of knowledge is best served when history is the common property of all, and each generation remains free to draw upon the discoveries and insights of the past. Accordingly, the scope of copyright in historical accounts is narrow indeed, embracing no more than the author's original expression of particular facts and theories already in the public domain...

But, where... the idea at issue is an interpretation of an historical event, our cases hold that such interpretations are not copyrightable as a matter of law...

… there could be no infringement because of the "public benefit in encouraging the development of historical and biographical works and their public distribution."

...To avoid a chilling effect on authors who contemplate tackling an historical issue or event, broad latitude must be granted to subsequent authors who make use of historical subject matter... "[t]here cannot be any such thing as copyright in the order of presentation of the facts, nor, indeed, in their selection."

Such an historical interpretation, whether or not it originated with Mr. Hoehling, is not protected by his copyright and can be freely used by subsequent authors.The same reasoning governs Hoehling's claim that a number of specific facts, ascertained through his personal research, were copied by appellees. The cases in this circuit, however, make clear that factual information is in the public domain...

A verbatim reproduction of another work, of course, even in the realm of nonfiction, is actionable as copyright infringement...

Knowledge is expanded as well by granting new authors of historical works a relatively free hand to build upon the work of their predecessors...

Finally, we affirm Judge Metzner's rejection of Hoehling's claims based on the common law of "unfair competition. Where, as here, historical facts, themes, and research have been deliberately exempted from the scope of copyright protection to vindicate the overriding goal of encouraging contributions to recorded knowledge, the states are preempted from removing such material from the public domain.